Remember several months ago when the Ninth Circuit held that the date of a prior removal is an element of the enhanced penalties found in 8 U.S.C. § 1326(b), the illegal reentry statute? The Fifth Circuit has now joined suit, but disagrees with the Ninth Circuit on a separate issue: the test to apply for the third prong of plain error review.

Rojas was charged with illegal reentry. His indictment alleged that he had previously been removed, but did not allege a specific removal date or anything else about the removal. When Rojas pleaded guilty to the indictment, he admitted that he had been removed in 1988.

Fast-forward to sentencing: the presentence report alleged that Rojas was convicted of aggravated assault in 2003, and removed in 2006 after he completed his sentence for that crime. On that basis, the PSR contended that Rojas faced a statutory maximum penalty of 20 years' imprisonment under § 1326(b)(2), as well as a 16-level COV enhancement under guideline §2L1.2. Rojas did not object to the enhancements, and the district court sentenced him to 73 months' imprisonment.

Relying on Apprendi, Rojas argued on appeal that the 2006 removal could not be used to increase his maximum punishment because he did not admit that removal and a jury did not find that removal beyond a reasonable doubt. The Government countered that the removal, like the fact of a prior conviction, is simply a sentencing factor under § 1326(b)(2) and therefore not subject to the Sixth Amendment rule announced in Apprendi.

The court first explained why this matters. Under § 1326(a) ("simple" illegal reentry), a defendant who illegally reenters the United States after having been removed is subject to a maximum of two years' imprisonment. But under § 1326(b) ("aggravated" illegal reentry), a defendant who was removed "subsequent to" a conviction for certain specified offenses is subject to a maximum of ten or twenty years' imprisonment. Thus, in Rojas's case, "[b]ecause he was not convicted of aggravated assault until 2003, his 1988 removal, although sufficient to convict him of violating § 1326(a), could not form the basis of the enhancement in § 1326(b)(2), because it was not 'subsequent to' his conviction." Instead, the enhancement would have to rest on the 2006 removal. Hence the issue.

The court went on to hold that, because the temporal relationship between a removal and a prior conviction increases the statutory maximum penalty an illegal reentrant faces, the date of removal is a fact subject to the rule of Apprendi and must be admitted by a defendant or proved to a jury beyond a reasonable doubt. It recognized that Almendarez-Torres remains goods law, but also pointed out that the Supreme Court has refused to expand that case's holding to any fact other than the fact of a prior conviction. The court also rejected the Government's attempt to analogize a removal to recidivism, observing that

one of the reasons the Supreme Court has countenanced the use of a prior conviction to enhance a sentence is that a prior conviction is the product of procedures that encompass the constitutional guarantees of fair notice, reasonable doubt, and a jury. Removals, on the other hand, are not subject to the same constitutional requirements. Consequently, while a court may use a prior conviction with the knowledge that the defendant was given multiple constitutional protections, the same cannot be said for prior removals.

(sans cites).

That means it was error for the district court to increase Rojas's punishment on the basis of the 2006 removal. And the error was plain due to cases such as Apprendi and Jones which refused to expand Almendarez-Torres's holding.

But what about substantial rights? The Fifth Circuit says an error affects substantial rights if it affected the outcome of the proceeding. Nevertheless, the Government urged that the court should apply a more stringent Ninth Circuit (!) standard in which "a defendant is required to raise reasonable doubt that a rational jury would have found him guilty of the sentencing element absent the constitutional error before a court may conclude that the defendant’s substantial rights were affected." Under that standard, Rojas would have to raise a reasonable doubt as to whether he was removed in 2006.

The court refused the Government's invitation, since the Fifth Circuit has never adopted the Ninth Circuit's reasonable-doubt test. Thus, "[g]iven that Rojas-Luna received a sentence of seventy-three months in prison when, absent constitutional error, his sentence would have been a maximum of two years, we have little difficulty in concluding that Rojas-Luna’s substantial rights were affect[ed]."

Okay, what about the last plain-error hurdle? Did the error seriously affect the fairness, integrity, or public reputation of the judicial proceedings? Yes. Unlike Cotton, there wasn't much evidence of the fact that jacked up the sentence:

In the present case, there was no trial at which evidence of Rojas-Luna’s 2006 removal might have been presented; there was only a plea colloquy at which the Government failed to set forth any evidence of the 2006 removal. The unsupported statement in Rojas-Luna’s PSR that he was removed in 2006 is not “overwhelming” evidence of the fact of his removal, particularly in light of the fact that there is no evidence in the record that Rojas-Luna ever agreed to the accuracy of the PSR.

(Yet another reminder of why a defendant may want to remain silent when the district court asks him to verify the factual allegations in the PSR.) Thus, the court exercised its discretion to correct the error and vacated Rojas's sentence.

Don't think this case is just about a narrow point of illegal reentry sentencing. The court's understanding of the limited nature of Almendarez-Torres could come in handy when challenging other statutes, as well.

You can add another item to the list of documents a court can use when employing the modified Taylor/Shepard categorical approach: a judical confession.

In this illegal reentry case, Garcia had a prior Texas conviction for delivery of a controlled substance. As we all know, that offense isn't categorically a "drug trafficking offense" for purposes of the guideline §2L1.2 enhancements because it includes some conduct---an offer to sell a controlled substance---that lies outside the DTO definition. So the question was whether the available documents from Garcia's state court guilty plea established that he was convicted of committing the offense in a way that would constitute a DTO.

Here, there were three documents available from the state court proceedings: the indictment, the judgment, and a judicial confession. The indictment alleged all three alternative methods of delivery conjunctively (actual transfer, constructive transfer, and offer to sell), and the judgment simply said that Garcia was convicted of delivery. Because Texas law allows conjunctive pleading and disjunctive proof, the indictment and judgment together did not exclude the possibility that the conviction could have rested on an offer to sell (just like in this case).

But what about the judicial confession? The court looks to Shepard, which sanctioned reliance on “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some other comparable judicial record of this information.” (emphasis added). Looking to state law for the effect of a judicial confession in Texas, as it must, the court goes on to hold that

a written judicial confession . . . constitutes a “comparable judicial record” under Shepard, and . . . it may be considered in determining whether a defendant’s prior conviction constitutes a drug trafficking offense under the guidelines. A Texas judicial confession is an admission made in the course of judicial proceedings by a party, “such as a confession made to an examining court before the trial.” Under Texas law, a judicial confession which stipulates to the factual content in an indictment provides a strong enough evidentiary basis to support a judgment of conviction on the charge without the need for any corroborating evidence. Also, Texas courts have recognized written judicial confessions as providing necessary proof of prior convictions for state sentence enhancement purposes. Accordingly, we regard a written judicial confession as the type of reliable and accurate judicial record the Shepard court indicated that a federal court may rely upon in an effort to determine the nature of the Texas offense to which Garcia previously pleaded guilty.

(cites asported).

That sounds right, but then things get a little odd when the court looks at Garcia's judicial confession, which admitted "that he did 'knowingly and intentionally deliver, to-wit, actually transfer, constructively transfer and offer to sell a controlled substance[,]' . . . [and]that he 'committed the offense with which [he] stand[s] charged exactly as alleged in the indictment in this case.'" The court holds that this confession established that Garcia committed all three forms of delivery: actual transfer, constructive transfer, and an offer to sell. Because two of those fit within the DTO definition, the enhancement applied.

Is the court right about that? It's easy to see how someone could offer to sell a controlled substance and then constructively transfer it, or offer to sell and then actually transfer. But actual and constructive transfer seem mutually exclusive, so does Texas law allow a conviction for both actual and constructive transfer where both acts are alleged in a single count? And if not, doesn't that create an ambiguity as to the exact type of delivery that Garcia was convicted of? I invite anyone familiar with Texas law on this point to chime in with a comment.

Court May Not Order Sentence to Run Consecutively to Anticipated, But Not-Yet-Imposed, Federal Sentence

May a district court order that a sentence run consecutively to an anticipated, but not-yet-imposed, federal sentence? Nope.

Let's get a little more concrete. Quintana pleaded guilty to illegal reentry in the Northern District of Texas. At that time, he had a supervised release revocation petition pending in the Southern District. The Northern District judge sentenced Quintana to 57 months on the new case, and ordered the sentence to run consecutively to any sentence Quintana might receive on revocation. Later, the Southern District judge revoked Quintana's supervised release, sentenced him to six months' imprisonment, and ordered the sentence to run concurrently to the 57-month sentence for the new case.

Quintana appealed the Northern District judgment, arguing that when an unstoppable force meets an immovable object . . . wait, that's not right . . . (leafing through opinion) . . . ah, here it is: Quintana argued that the court lacked authority to order the sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence. He contended that under the plain language of 18 U.S.C. § 3584, a court may order a sentence to run consecutively only if 1) "multiple terms of imprisonment are imposed on a defendant at the same time," or 2) "a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment[.]"

The Government countered that the Fifth Circuit's decision in United States v. Brown foreclosed Quintana's argument. Relying on the doctrine of dual sovereignty, Brown held that § 3584 doesn't preclude a federal court from ordering its sentence to run consecutively to any not-yet-imposed state sentence. (As Quintana-Gomez mentions in a footnote, there's a long-standing circuit split on this issue.)

The court here rejected the Government's reliance on Brown, pointing out that the opinion did not discuss the dual-sovereignty concerns, or the actual text of § 3584(a), in great detail. In fact, the dual-sovereignty rationale of Brown distinguishes it from this case, which involves a battle of wills between two courts of the same sovereign. Also, "it should be noted that the Brown panel did not hold that the state court was so legally bound by the federal court’s order that the state court could not order its sentence to run concurrently with the federal sentence if it chose to do so."

Instead, the court agreed with Quintana's argument, finding the Fourth Circuit's decision in United States v. Smith persuasive on this question. Smith reasoned that "allow[ing] one federal court to order that its sentence run consecutively to or concurrently with an anticipated but not-yet-imposed federal sentence 'would place one federal court in the position of abrogating the sentencing authority of another[,]'" a result Congress likely did not intend. Additionally, a court making the consecutive-vs.-concurrent determination must consider the § 3553(a) factors, and "'[o]nly a court that sentences a defendant already subject to an undischarged term of imprisonment could properly consider whether a consecutive or concurrent sentence best serves the goals of § 3553(a), as only that court knows the circumstances attending the later sentence.'"

So Quintana wins, right? No. Well, maybe.

You see, Quintana did not object to the Northern District's order that the 57-month sentence run consecutively to any revocation sentence. So the court of appeals reviewed for plain error. And it concluded that even though there was error, it wasn't "plain" because the Fifth Circuit hadn't yet addressed this question and Brown "at least arguably indicated" otherwise. But then there's this intriguing footnote:

Because the Northern District Court was without authority to order that its sentence run consecutively, its order, in this limited respect, is without effect and may be disregarded by the Federal Bureau of Prisons in the light of this holding.

For discussion:

1) Anyone know how the BOP actually handles situations like this?

2) The court added, in addition to its statutory holding, that "as a general principle, one district court has no authority to instruct another district court how, for a different offense in a different case, it must confect its sentence." Might that (dicta?) be the more important part of this opinion?

Monday, March 24, 2008

Cert Grant: Is Domestic Relationship an Element of "Misdemeanor Crime of Domestic Violence" Under § 922(g)(9)?

Today the Supreme Court granted cert in United States v. Hayes, No. 07-608, to consider whether, in order to qualify as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), the domestic relationship required by § 921(a)(33)(A)(ii) must be an element of the predicate offense.

As discussed here, Hayes, a Fourth Circuit opinion,answered that question "yes." That holding conflicted with the decisions of every other circuit that had addressed the question, including the Fifth Circuit. So if you haven't already been preserving this issue in light of the circuit split, you'll probably want to do so now.

Tuesday, March 18, 2008

Free Online Legal Databases (Some Even Searchable)

This article at law.com highlights several sites offering free access to databases of federal statutes and case law. Some are simply a repository of opinions, which can be handy if all you want to do is pull up a case.

Another project, still in early testing, aims to give this growing body of public-domain law a sophisticated search engine comparable to those of commercial legal databases. Already, the developers of this experimental legal search engine, called PreCYdent, claim their tests outperform "by a wide margin" Westlaw natural language search, not to mention other commercial databases.

And then there's this:

Not to be outdone, at least one commercial publisher is getting aboard the free-law bandwagon. On Feb. 13, Fastcase, the company that provided Public.Research.Org with all those cases, unveiled an even larger free library of cases, statutes, regulations, court rules and legal forms. Called The Public Library of Law, it claims to be "the most comprehensive free resource for legal research online."

PLOL includes all the federal cases Fastcase provided to Public.Research.Org, plus appellate cases from all 50 states from 1997 forward. In addition, it has all states' statutes and court rules, selected states' regulations or administrative codes, the U.S. Code, the Code of Federal Regulations and court rules.

Monday, March 17, 2008

Supremes Take Ice

[w]hether the Sixth Amendment, as construed in [Apprendi and Blakely], is violated by the imposition of consecutive sentences based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

It's not immediately apparent to me whether the case will have any impact on federal sentencing, but seeing as how there's still unanswered questions post-Booker, any Sixth Amendment sentencing case is worth rubbernecking.

Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).

The Court's resolution of the question may extend beyond lab reports. As the cert petition notes, "courts holding that forensic reports are testimonial . . . reason that such reports are created solely for use in criminal prosecutions and present ex parte attestations aimed at helping to prove the defendant's guilt." That sounds an awful like like the certificate of non-existence that is commonly presented, in lieu of live testimony in illegal reentry cases, to establish that an alien had not received permission to reenter the United States. Or perhaps the use of a grand jury transcript to establish the predicate for the admission of a business record at trial. So think broadly, and preserve accordingly.

Tenth Edition of "An Introduction to Federal Sentencing" Now Available

Interested in a broad overview of how federal sentencing works? Then you'll want to dig right into "An Introduction to Federal Sentencing," now in its tenth edition. Most of what's in the paper will be familiar to anyone handles federal cases on a regular basis, but if you're just getting started in the federal world (or if you just like to take in the big picture every now and then) you'll find: a summary of the relevant statutes and the Guidelines Manual, tips for applying the Guidelines, commentary on plea bargaining, and traps for the unwary. This latest version covers Sentencing Guidelines amendments through March 2008, and discusses the impact of Booker, Rita, Gall, and Kimbrough on federal sentencing practice. Enjoy.

If Defendant Got §4A1.3 Departure at Original Sentencing, Revocation Guidelines Calculation Requires Use of Pre-Departure CHC

Chapter 7 of the Guidelines Manual provides advisory sentencing ranges for probation and supervised release violations. The recommended ranges are determined by the grade of violation and the defendant's criminal history category. Policy statement §7B1.4(a) provides that "[t]he criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervision."

What if, at the original sentencing, the defendant received a downward departure to a lower criminal history category pursuant to policy statement §4A1.3? Does the Guidelines revocation calculation use the pre-departure or post-departure criminal history category?

McKinney holds that it's the former:

We . . . hold that where a district court granted a departure for the reasons set forth in U.S.S.G. § 4A1.3 at the time the defendant originally was sentenced to a term of supervised release, upon revocation of supervised release, the applicable criminal history category for determining the advisory revocation sentencing range under U.S.S.G. § 7B1.4(a), p.s., is that criminal history category determined prior to any such departure.

There's several pages worth of analysis in the opinion parsing the relevant Guidelines language, if you're interested in knowing why.

Thursday, March 13, 2008

Hybrid Aggravated Felonies

Looking for a new angle on aggravated felony arguments? Try this one on for size: hybrid crimes.

As you're no doubt well aware, there's a whole slew of offenses that are "aggravated felonies." (And if you didn't know that, just pop on over to 8 U.S.C. § 1101(a)(43) and take yourself a gander.) What happens if a particular offense shares the characteristics of more than one of the offense categories that are listed as aggravated felonies? For example, a "theft offense" for which a person received a sentence of at least one year's imprisonment is an aggravated felony. So is "an offense that . . . involves fraud or deceit in which the loss . . . exceeds $10,000." So what about, say, theft accomplished by fraud? What if that offense contains all the elements of a theft offense and an offense involving fraud or deceit? Is it an aggravated felony?

That's the question the Third Circuit addressed a few years ago in Nugent v. Ashcroft. The court concluded that, under the categorical approach, the Pennsylvania offense of theft by deception was a "hybrid crime," in that it qualified as both a theft offense and an offense involving fraud or deceit. Nugent went on to hold that a hybrid crime must meet the requirements of both categories of offenses for it to be an aggravated felony. Thus, a conviction for theft by deception would only be an aggravated felony if the person was sentenced to at least one year's imprisonment (as required for a theft offense), and involved a loss in excess of $10,000 (as required for an offense involving fraud or deceit).

"Okay," you say, "will that play in Pampa, Plaquemine, or Pearl River? And are there other possible hybrid aggravated felonies?"

Let's take the last part first. One of the judges on the Nugent panel wrote separately

to stress that this logic should not compel that we combine definitions within this section, as a general rule. Rather, only where the offense is a hybrid---as I submit theft by deception is--- and the aggravated felony classifications contain two distinct, clearly applicable tests, should we conclude that both must be fulfilled in order for the offense to qualify as an aggravated felony.

So yes, maybe there are others.

As for the Fifth Circuit, it hasn't actually adopted the hybrid offense analysis. Although the court did take it out for a spin in Martinez v. Mukasey, No. 06-60063 (5th Cir. Mar. 11, 2008) (King, Barksdale, Dennis). Martinez assumed, for the sake of argument, that the Nugent analysis might apply in the course of deciding whether a conviction for bank fraud under 18 U.S.C. § 1344 is an aggravated felony. The court ultimately concluded that bank fraud isn't a hybrid theft/fraud offense (because it doesn't require that property be taken without the owner's consent, an essential element of a "theft offense"), so it didn't decide whether both the length-of-imprisonment and loss requirements would kick in before the offense could be treated as an aggravated felony. But Martinez didn't say the hybrid offense theory could never apply, so it leaves the door open for this argument with regard to other crimes.

Here's one for all the appellate geeks out there: how must the Government meet its burden of proving that a Confrontation Clause violation at trial was harmless beyond a reasonable doubt? Answer: it depends on the type of Confrontation Clause violation.

If the violation consists of the introduction of inadmissible testimony, then apply the Chapman v. California test: the error is harmless only if there is no reasonable possibility that the evidence contributed to the conviction. This is the test that would apply to Crawford violations (the introduction of testimonial hearsay absent unavailability and a prior opportunity for cross-examination).

But if the violation is a denial of the defendant's right to impeach a witness for bias, then apply the test from Delaware v. Van Arsdall, which considers

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

According to Alvarado-Valdez, Van Arsdall did not announce a standard of review different from that set forth in Chapman. It's just that the Van Arsdall "test makes sense in light of that specific Confrontation Clause violation: To determine whether a defendant was harmed by not being able to impeach a witness, it is necessary to look at what the full exercise of cross-examination could have disclosed." Hence the different proof requirements depending on the exact type of Confrontation Clause violation.

And now for an interesting procedural aside. Alvarado was convicted almost a decade ago, but he may actually have benefitted from having his appeal take so long. Here's how:

In 1998, Alvarado was charged in a drug conspiracy. One of his codefendants pled guilty before trial, and later fled to Mexico. At Alvarado's trial, the Government called "Agent Garcia" to testify about what that codefendant said during his interrogation, and relied heavily on that testimony in the closing argument. Alvarado was convicted, and appealed.

In 2001, the Fifth Circuit erroneously dismissed the appeal for failure to prosecute. The court reinstated the appeal in 2006, and just yesterday reversed Alvarado's conviction on the basis of the Crawford violation.

As it turns out, Alvarado may have actually benefitted from the erroneous dismissal of his appeal. Had that not happened, the court likely would have resolved the appeal in 2001 or 2002. Of course, that was before Crawford, which was decided in 2004. It's possible that the court would not have found a Confrontation Clause violation based on the pre-Crawford state of the law, thus affirming Alvarado's conviction. And Crawford isn't retroactive, so Alvarado wouldn't have been able to benefit from it. How 'bout that?

Tuesday, March 11, 2008

TX Indecency With a Child Is Generic "Sexual Abuse of a Minor," Therefore a 16-Level COV Under §2L1.2

Texas Penal Code § 21.11 defines the offense of "indecency with a child." For purposes of that statute, a "child" is a person under age seventeen. The offense can be commited by sexual contact or exposure, and the statute apparently covers both consensual and non-consensual conduct.

In United States v. Zavala-Sustaita, the Fifth Circuit held that Texas indecency by exposure is "sexual abuse of a minor" for purposes of the "aggravated felony" definition in 8 U.S.C. § 1101(a)(43). It concluded that a person under age seventeen "is clearly a 'minor[,]'" and that even in the absence of contact, exposure undertaken for purposes of sexual gratification is abusive. (And in so holding, the court apparently overlooked the fact that a Texas case it cited in support of the latter proposition, Uribe v. State, holds that the offense can be committed even if the child doesn't see the exposure.)

The question in Najera-Najera is whether indecency by contact, as opposed to indecency by exposure, is "sexual abuse of a minor" for purposes of the 16-level crime-of-violence definition in guideline §2L1.2. The court answers "yes." On plain error review, the court concludes that Zavala-Sustaita's construction of the term "sexual abuse of a minor" is controlling, and reasons that if indecency-by-exposure is sexual abuse of a minor, then so is indecency by contact.

COV mavens will recognize that this creates an anomaly in the §2L1.2 COV definition with regard to the age at which a person is no longer a "minor" for enumerated-offense purposes. Recall that only two months ago, in United States v. Lopez-DeLeon the Fifth Circuit considered the generic definition of another enumerated §2L1.2 COV: statutory rape. Lopez-DeLeon held that "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen." (emphasis added). Najera-Najera does not mention Lopez-DeLeon, nor does it explain why the term "minor" would have two different meanings within the same COV definition.

There's another interesting issue the court doesn't address: because the Texas indecency statute's peer exception distinguishes between heterosexual and homosexual conduct, the statute very probably encompasses conduct that would not be punishable under the generic conception of "sexual abuse of a minor." The Texas indecency peer exception creates an affirmative defense if "the actor . . . was not more than three years older than the victim," but only if the two people "are of the opposite sex." So if an 18-year-old and a 16-year-old of the opposite sex engage in consensual sexual contact or exposure, the 18-year-old is not guilty of a crime. But if they are of the same sex, then it is a crime. Putting aside the questionable constitutionality of that distinction in light of Lawrence v. Texas, I'd be surprised if that represents the views of a majority of states. Under the categorical/common-sense approach to COV analysis, that would make the Texas statute non-generic. The COV enhancement may still apply to a Texas conviction, but the Government would have to prove that the conviction rested on the elements of the generic offense by paring down the statute via a limited class of judicial documents, within the constraints of Taylor/Shepard. (If your head's not spinning yet, consider also that the peer exception to the Texas statutory rape provision applies equally to heterosexual and homosexual intercourse. Go figure.)

One last thing: even though the court correctly notes that the actual facts underlying a prior conviction aren't considered in the COV analysis, it nevertheless recites the facts of Najera's prior in a footnote. If those facts aren't relevant, then why mention them at all?

Fifth Circuit watchers know that the court has been largely silent on what Rita, and more recently Gall and Kimbrough, mean for reasonableness review in our circuit. That's (sort of) no longer the case, as Herrera-Garduno sheds light on how the Fives will approach such questions, at least when it comes to upward variances from the advisory Guidelines range. And that approach is quite deferential. Time will tell whether the same will hold true for below-Guidelines sentences and downward departures, although it certainly should.

Herrera pleaded guilty to a crime you may have heard of before: illegal reentry. He had a prior Texas drug conviction under a statute that prohibits manufacture, delivery, or possession with intent to deliver, which the PSR scored as a +16 DTO. Combined with an acceptance-of-responsibility adjustment, and a Criminal History Category of V, that put Herrera at a Guidelines range of 70 to 87 months.

Herrera objected to the DTO enhancement, presumably on the basis of this case law. That evidently got him down to just a +4 "any other felony" enhancement, because the post-objection Guidelines range was 21 to 27 months. That recalculation, in turn, prompted a Government request for an upward departure/variance, which the district court granted. Concluding that the Guidelines range didn't capture the seriousness of Herrera's criminal history (apparently due to the facts of the Texas drug prior, "which according to the district court indicated that Herrera was in fact trafficking heroin"), the court sentenced Herrera to 60 months' imprisonment.

On to the appeal. Per Gall, the court first considered whether there was any procedural error. It found none:

The district court correctly calculated the Guidelines range,* treated the Guidelines as advisory, considered the § 3553(a) factors, allowed both parties to present arguments as to what they believed the appropriate sentence should be, did not base Herrera’s sentence on clearly erroneous facts, and thoroughly documented its reasoning.

The court also held that the sentence was substantively reasonable, rejecting all three of Herrera's arguments to the contrary.

Herrera first argued that the district court's disagreement with the way his Texas drug conviction scored under the guideline "is not a sufficient reason to impose a non-Guidelines sentence." No dice, says the court, because Kimbrough approved variances based on policy disagreements with the guidelines. And, 1) "we have previously held that '[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence'" (citing Smith), 2) "we have also upheld an upward departure without regard to whether the prior offense 'technically' qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii)" (citing Tzep-Mejia), and 3) "in a recent case . . . we noted that, even though the defendant’s prior conviction was not a 'drug trafficking offense' under § 2L1.2(b)(1)(A)(i), if, on remand, the district court chose to impose a non-Guidelines sentence, the district court could consider the defendant’s prior conviction for this purpose" (citing Lopez-Salas). Thus, "[i]n the light of these precedents, it is clear that the district court did not abuse its discretion by considering the facts of Herrera’s prior convictions as a basis for his non-Guidelines sentence."

[Quibble: Tzep-Mejia and Lopez-Salas don't have quite the precedential weight the court attributes to them. Tzep-Mejia affirmed what the court strongly suggested was a downward variance, not an upward variance. And that line in Lopez-Salas was dictum, even if it is true as a general matter.]

Second, Herrera argued that the district court's "'generalized observations' [were] insufficient to justify the extent of the upward departure." The court declared, somewhat non-responsively, that "this argument . . . lacks weight" because "we have rejected Herrera's argument regarding the district court's 'disagreement' with how 'drug trafficking offenses' are defined under § 2L1.2[.]" More to the point, the court cited precedent holding that a district court does not need to specifically address each and every § 3553(a) factor. "Here, because the district court relied primarily on the facts of Herrera’s prior conviction, and because the court addressed these facts and their relation to the § 3553(a) factors in some detail, we are satisfied that the district court’s statement of reasons provides an adequate basis for our review."

[Another quibble: the opinion doesn't recount the district court's discussion of the factors, so it provides little guidance as to how much discussion is necessary for a variance of this (or any other) magnitude. A footnote seems to show that the written statement of reasons was largely a boilerplate recitation of § 3553(a) language, without reference to the specific facts of Herrera's case.]

Finally, Herrera argued that even if an upward departure was warranted, the facts didn't justify the extent of the departure. The court disagreed, holding that "the departure is commensurate with the individualized, case-specific reasons provided by the district court[,]" although again without describing those reasons in any detail. And then there's this curious passage:

The district court concluded that the Guidelines range did not adequately account for the fact that Herrera had in fact been convicted for drug trafficking conduct. Had the sentencing enhancement under § 2L1.2 for drug trafficking offenses been applied, the Guidelines sentencing range would have been 70 to 87 months of imprisonment. Using this range as a reference, Herrera’s sentence of 60 months of imprisonment is not unreasonable and the district court did not abuse its discretion by imposing this sentence.

(Why would an inapplicable range based on an incorrect guideline calculation be an appropriate frame of reference? Of course, this works both ways. Sometimes a prior conviction triggers a substantial enhancement that is out of proportion to the seriousness of the actual conduct underlying the conviction.) The court also cited cases, including a couple from the mandatory Guidelines era, approving "similar and proportionately larger deviations from the advisory Guidelines."

The silver lining here (and yes, there is a silver lining) is that Gall compels the court of appeals to apply this same degree of deference to below-Guidelines sentences. So, to take just one example, a district court should feel perfectly free to chop the advisory Guidelines range in half (or more) when an illegal reentry defendant is getting hammered with a +16 DTO bump for selling a gram of coke in an undercover buy, especially when it's obvious that he was just a user or an addict supporting his own habit. And that sentence should survive appellate review.

Wednesday, March 05, 2008

New Texas Ethics Opinion on Conflicts Between Multiple Clients of a Single Public Defender's Office

All Texas-licensed FPD lawyers practicing anywhere in the Fifth Circuit---as well as all FPD lawyers (wherever they may be licensed) who practice in a district that mandates compliance with the Texas ethical rules---should read the recent opinion from the Professional Ethics Committee of the State Bar of Texas appearing in the March 2008 issue of the Texas Bar Journal. Known as "Opinion No. 579," and issued in November 2007, it addresses a lawyer's obligations under the Texas ethical rules when a conflict of interest arises between multiple clients of a single public defender organization.

The scenario: PD lawyer represents Client A in a criminal case. PD lawyer is later appointed to represent Client B in a separate criminal case. PD lawyer quickly realizes during the initial interview with Client B that both criminal charges substantially relate to the same incident, that the clients' interests are adverse to each other, and that representation of Client B will be materially affected by representation of Client A.

Thus, the two questions presented, and the opinion's answers:

Question 1: May a lawyer in a public defender's office avoid a conflict of interest arising from representation of two different clients by referring one of the clients to another lawyer in the same public defender's office?

The answer: no. Because PD lawyer determined that the representation of Client B would be materially affected by representation of Client A, the conflict is not waivable and PD lawyer is therefore prohibited from representing Client B. And under Rule 1.06(f) of the Texas Disciplinary Rules of Professional Conduct, that prohibition extends to all other lawyers in the PD office, which is considered a "law firm" for purposes of the rule.

Question 2: May a lawyer in a public defender's office, after concluding that a conflict exists, continue to represent a client subsequent to withdrawing as counsel for another client. [In other words, can PD lawyer continue to represent Client A on these facts?]

The answer: yes, if the representation of current Client A is not adverse to former Client B within the meaning of TDRPC 1.09 (concerning conflicts between current clients and former clients), and there is no violation of TDRPC 1.05 (concerning the use of confidential information obtained from the former client). But if continued representation of Client A becomes adverse to former Client B (such as if one client were likely to be a witness against the other), then PD lawyer may not continue to represent Client A unless former Client B consents. And PD lawyer may not use former Client B's confidential information to Client B's disadvantage unless an exception to the confidentiality rules of TDPRC 1.05 applies, the information has become generally known, or Client B consents after consultation as required by TDRPC 1.05(b)(3). (Paraphrased answer to question 2: as a practical matter, very rarely.)

Note that in the past the Fifth Circuit has refused to allow a PD lawyer to withdraw from representing a client on appeal in circumstances substantively identical to those presented in Opinion 579. See United States v. Trevino, 992 F.2d 64 (5th Cir. 1993) (one-judge order). Among other reasons for denying withdrawal, the court essentially took the view that a PD office isn't a law firm for purposes of conflict rules:

Typically, the potential for a multiple representation conflict exists when codefendants are represented by the same attorney. The potential for such conflicts, however, does not necessarily exist when, as in this case, codefendants are represented by different attorneys, albeit in the same public defender office. The duty of loyalty runs only to that attorney's client; the attorney is in no way being asked to serve two masters.

As you can see, Trevino's view of the relationship among attorneys in a PD office conflicts with Opinion 579's construction of TDRPC 1.06. And these dueling views have the potential to put counsel in a pickle, in which case counsel should also note TDRPC 1.15(c): "When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." Of course, that doesn't resolve the question of how all this affects a defendant's right to conflict-free representation.